The Supreme Court of Canada has reinstated a $4-million award to a Vancouver mother whose son was born with severe brain damage in a medical lawsuit that had been overturned because the judge plagiarized most of his decision.
Dan Shugarman, the lead lawyer for the Cojocaru family, said Friday's ruling upholds the concept that plagiarism in judicial writing doesn't exist.
"And the chief justice of our Supreme Court of Canada this morning said in that decision that what you could discern from this judgment was that Justice Groves did in fact exercise independent thought."
Monica Cojocaru, the mother who has waged the legal battle since her son's birth in 2001, says this decision means her son can finally get the help he needs.
"Seeing him suffering and seeing him having so many troubles at school trying to make friends — in every aspect of the life he suffered and every time a child suffers, I think the mother suffers 100 times more."
Award thrown out by appeal court
Cojocaru launched a lawsuit against B.C. Women's Hospital and its staff after her son, Eric, was born with severe brain damage.
The lawsuit alleged that at the time of the birth, Cojocaru was new to Canada from Romania and spoke little English.
She wanted a caesarean, but doctors caring for her went forward with a vaginal birth. In the process, Eric was starved of oxygen and born with brain damage.
After a long legal battle, B.C. Supreme Court Justice Joel Groves found in 2009 the hospital, a nurse and three doctors liable in negligence, and awarded Cojocaru $5 million to help pay for physiotherapy, speech and language therapies, private education and home care for Eric.
But that award was thrown out by the B.C. Court of Appeal when it was discovered the lower court judge plagiarized almost 100 pages of 110-page decision from the written arguments submitted by Cojocaru's lawyer, saying it raised the perception the judge didn't do his own reasoning and wasn't fair to the defendants.
'Judgment should not be set aside'
The case eventually ended up at the Supreme Court of Canada, which issued a ruling Friday on the appeal.
"Taking full account of the complexity of the case, and accepting that it would have been preferable for the trial judge to discuss the facts and issues in his own words, it cannot be concluded that the trial judge failed to consider the issues and make an independent decision on them," the ruling reads.
"The presumption of judicial integrity and impartiality has not been displaced. On the contrary, the reasons demonstrate that the trial judge addressed his mind to the issues he had to decide. The fact that he rejected some of the plaintiffs’ key submissions demonstrates that he considered the issues independently and impartially …. The judgment should not be set aside on the ground that the trial judge incorporated large parts of the plaintiffs’ submissions in his reasons."
Shugarman says they were confident but uncertain of the outcome of a case he called "uncharted territory."
"It's been a tremendously trying, stressful time for the family."
The judgment against one of the doctors, Dr. Jenise Yue, in respect to failing to obtain the patient's consent before the procedure was upheld.
Actions against the nurse, the hospital and two other doctors was dismissed, as were other actions against Yue.